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Libel, Couching Language, and Legal Blogging

There are numerous legal issues that make legal blogging a minefield. From trademark law to copyright law to your state’s ethical rules, it can be risky for attorneys to blog on their own without stopping and asking some serious questions about what you’re writing—questions that often go far beyond the types of law where you’re comfortable or experienced.

One of the mines in this field is libel, and you risk stepping on it anytime you use someone’s name.

Legal Blogging and Libel

If you damage someone else’s reputation in a written format, you may have committed libel, especially if that someone else is not a public figure. So, if you’re a personal injury lawyer writing about a topical car accident or a family law attorney covering a divorce case, you have a decision to make: Do you use the party’s real names, or do you use generic labels like:

  • Driver
  • Victim
  • Husband
  • Wife

The Benefits of Using True Names

There’s no denying it: Using the actual names of the parties in a situation gives the story more impact. You’re not constantly alienating the reader with labels that stand in for real people, letting you pull readers closer to the tale and endow the victims with the sympathy that they deserve. Nor are you painting yourself into a corner with labels that quickly become confusing, like a divorce case that involves a previously divorced spouse, a newly divorced spouse, and a remarriage (new wife, ex-wife, and… previously-ex-wife?).

How Using True Names in a Legal Blog Can Lead to Trouble

But using names can ruffle some feathers and—as we seem to be learning more and more, everyday—some people can get offended by just about anything. A legal blog post about a car accident where Kyle crossed the center line and hit Jenny can lead to phone calls from Kyle, claiming that it’s libelous, and from Jenny, claiming that the blog post (but not the news stories it’s based on) violates her privacy in some vague way.

Phone calls like this rarely lead to legal action, but they’re annoying and even the possibility of facing a lawsuit—even a frivolous one—is something that many lawyers think vastly outweighs the literary benefits of using true names in a blog post. Going through the process of proving the blog post true can seem like a mountain, while revising the article to take out the name becomes like hurdling two layers of matchboxes.

A Possible Savior: Couching Language

If you do want to use true names in your legal blog posts, couching language can insulate those names from insinuations of guilt or liability.

Couching language can protect your legal blog posts from claims of libel

You use couching language when you are making it clear that what you’re saying comes from somewhere else, and that your firm is not trying to pass judgment on the topic. Typical examples include:

  • According to the study…
  • In the eyes of the court…
  • The police report found that…
  • A witness said…

Phrases like these show that your firm is merely the conduit of a message or statement that comes from somewhere else. This, in theory at least, should make the offended party go to the source of the information with their complaint, rather than your law firm.

However, it is not always easy to properly couch actual names in the types of language that deflects your statements to another party and protects you and your law firm from an accusation of libel. It can also lead to stilted sentences in an article, as you go out of your way to remind the reader, ad nauseam, that you are relying on other sources for what you say.

Finally, just because you have made it abundantly clear that you are merely reciting what other people have said does not mean that offended and overly-litigious parties will care.

Reminder: Legal Blogs Should Be Considered Commercial Speech

Another important factor to consider in whether you use true names or labels in your legal blog posts is that legal blogging is likely a form of commercial speech. Such a moniker brings fewer legal protections and an increased need for a conservative approach.